Buhari’s election: Tribunal refuses forensic analysis of electoral materials

Buhari’s election: tribunal refuses forensic analysis of electoral materials

Election petition tribunal sitting in Abuja, Nigeria on Wednesday refused to grant the opposition party, the Peoples Democratic Party (PDP) and its presidential candidate, Atiku Abubakar, prayers to subject electoral materials in the just concluded February 23 election to forensic analysis.

Atiku and the PDP are alleging that the election was massively rigged in favour of the ruling party but needed to establish their claims by getting forensic experts to audit the materials including ballot papers and card readers.

There were claims of underage voting, multiple voting and thumbprinting which only forensic auditing could interpret

The tribunal, in a unanimous decision by a three-man panel of Justice led by Justice Abdul Aboki, however directed the electoral body to grant the PDP, and its presidential candidate, Alhaji Atiku Abubakar, access to the materials but declined to allow Atiku and PDP to conduct forensic analysis on any of the election materials, stressing that such request was outside the scope of the Electoral Act, as amended.

 Justice Aboki who delivered the lead ruling, held that Atiku’s request for experts to be permitted to conduct forensic audit on the election materials, could not be regarded as “examination”, as stipulated in section 151 of the Electoral Act.

He held that a decided case-law in Hope Uzodinma Vs Osita Izunaso, which Atiku and the PDP relied upon, wherein the tribunal ordered INEC to allow the petitioner to scan and conduct forensic audit on all the election materials, had since been set-aside by the Court of Appeal.

Justice Aboki noted that the said ruling was vacated on the basis that “extensive orders” that were made by the lower tribunal, were totally outside the ambit of section 151 of the Electoral Act. He said the appellate court voided the order on the premise that it violated the right of fair hearing of the Respondents under section 36 of the 1999 Constitution, as amended.

 “In that case, the orders were set-aside and the appropriate order was made within the ambit of section 151 of the Electoral Act”, Justice Aboki added. Besides, he held that contrary to Atiku and PDP’s ex-parte motion, in Uzodinma’s case, the application was made when the tribunal had already commenced trial, “not when the petition was yet to be instituted”.

 Consequently, the tribunal said it would only order INEC to grant the Applicants access to examine and obtain Certified True Copies of election materials used for the presidential election. “Prayers 3, 4, 5 and 6 in the motion paper are hereby refused”, the tribunal held. Other members of the panel that concurred with the lead ruling were Justices Emmanuel Agim and Peter Ige.

The ruling came over three hours after Atiku and the PDP, through their team of lawyers comprising of three Senior Advocates of Nigeria, adduced reasons why INEC should be compelled to produce the election materials for forensic analysis.

Though their legal team was led by Dr. Livy Uzoukwu, SAN, however, it was Chief Chris Uche, SAN, that addressed the tribunal on behalf of the Applicants. Specifically, Atiku and his party, told the tribunal that the essence of the request was to establish that the presidential election was fraught with manifest irregularities they said included multiple thumbprinting of ballot papers.

 They expressed determination to engage forensic experts to scritinze all materials that INEC deployed for the election. In the joint motion ex-parte marked CA/A/P/EPT/1/2019, Atiku and PDP prayed the tribunal for leave to be allowed to obtain the sensitive materials from INEC. Aside INEC, other respondents in the motion were President Muhammadu Buhari and the All Progressives Congress, APC.

Uche told the tribunal that the motion dated March 4, was was also filed pursuant to section 6(6) of the 1999 Constitution, as amended, contained six reliefs. Among items he said his client wanted leave of the tribunal to be inspected by forensic experts, included over 80million ballot papers that were used for the election, which he said would be subjected to thumb print analysis.

 Other items the motion sought to be released to the intending petitioners for scrutiny, were the Voters Register, the Smart Card Reader Machines, as well as information stored in INEC’s back-up server. The first prayer in the motion, which was granted by the panel, was leave for Atiku and the PDP to file the action before the pre-hearing session of the tribunal, as prescribed by the Electoral Act.

The second prayer was for INEC to allow the Applicants or their agents, to scan and make photocopies of vital documents used in the conduct of the election, for the purpose of establishing manifest irregularities that allegedly led to President Muhammadu Buhari’s emergence as winner of the presidential election.

The Applicant told the tribunal that reliefs they sought against INEC was for the purpose of filing and maintaining an election petition they intend to lodge against the outcome of the 2019 Presidential Election. They insisted that prayers contained in the motion was also granted in Osun governorship election dispute between Rauf Aregbesola and Olagunsoye Onyinola.

Chief Uche, SAN, said his clients decided to approach the tribunal with the motion, in view of the fact that the Electoral Act stipulated that filing of the petition must not exceed 21 days after the election result was announced. “Because of the limited time, the Applicants who intend to file a petition, want to go and inspect, to be able to secure some of the documents that will be relied upon to maintain the petition. “We are urging your Lordships to grant us this orders, so that if we are inspecting, we can make copies by way of scanning or photocopying.

“The entire process will be conducted in the presence of INEC officials, and even the Respondents if they so wish”, Uche submitted. However, before the ruling was delivered the tribunal Chairman, Justice Aboki, queried Uche on why his clients would not simply apply to be issued with Certified True Copies of the requested items, and if the extant electoral law permits a litigant to scan election materials.

The tribunal panel stressed that opinion of forensic experts may not be admissible in evidence under the existing Electoral Act which it said specifically okayed the admittance of certified documents. A member of the panel, Justice Emmanuel Agim, noted that some of the requests by Atiku and the PDP, were “outside the precincts of section 151 of the Electoral Act”.

In his reply, Uche, argued that the court had in plethora of decided cases, held that the sort of evidence his clients are seeking to secure, could be admitted if it they were obtained with the leave of court. He said it would be practically impossible for INEC to certify over 80million ballot papers that were used in over 172, 000 polling units in the country were the presidential election took place. According to Uche, with leave of the tribunal, forensic experts would be brought to testify and give evidence during the eventual hearing of the petition. “My lords if they are not allowed to secure the evidence and testify, it will deprive us of the ability to identify those abnormalities when we find them. “Besides, if one individual thumb-printed over 500 ballot papers, the certified copies cannot reveal it. That is why we want to scan them and send for expert analysis.

“That is why we need INEC to allow us access to scan the required documents. Going by section 72 of the Electoral Act, all the materials are in the custody of INEC. “The information we want to get is just to help us to package our complaint, at the end of the day, INEC will also have the opportunity to confirm the authenticity or otherwise of any of the items we tender in evidence before the tribunal.

“In essence my lord no one will be prejudiced if our requests are granted. “We make this application, knowing the very limited time and very disadvantaged position of any petitioner so far as gaining access to the election infrastructure is concerned”, Uche added. After it had listened to the motion, the panel which initially stood down the matter for one hour to deliver its ruling, reconvened after three hours.

The panel had directed Atiku’s counsel to supply it with all the court decisions he claimed allowed the grant of reliefs the Applicants sought in the motion. The motion ex-parte was supported with a 12 paragraphed affidavit that was deposed to by one Col. Austin Akobundu, rtd, the director of Contact and Mobilization of the Atiku Abubakar Presidential Campaign Council.